Ontario Public Service Employees Union (Hill) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 88093

GSB#2012-3698

UNION#2012-0369-0075

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hill)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Nick Mustari Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Bart Nowak Ministry of Government Services Centre For Employee Relations Employee Relations Advisor

HEARING

November 26, 2013

Decision

1The Employer and the Union at the Central North Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Many of the grievances were settled through that process. However, a few grievances remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Christopher Hill is a Correctional Officer who applied for permanent posted position of Maintenance Mechanic 3. At the time, there was one position open. The grievor was not the successful candidate. However, shortly after the new incumbent was notified that he won the competition, he was seconded into a management position thereby leaving the original posted Maintenance Mechanic 3 position temporarily vacant.

3According to the Employer, the grievor was the next highest scoring applicant and for that reason Mr. Hill was approached and asked if he was interested in working as a MM3 on a temporary basis. The grievor agreed. The grievor worked in this position from June 3, 2012 until September 3, 2012.

4The grievor and the Employer signed a Secondment Agreement that set out the terms including hourly wage on June 26, 2012. This agreement stated that the grievor would be paid the hourly wage of an MM3.

5The issue between the parties is whether the grievor should have been paid at his Correctional Officer wage for the period between June 3, 2012 – when he began working as an MM3 – and June 26, 2012 – when he agreed in the Secondment Agreement to the lower wage of the MM3.

6The Union takes the position that the grievor was temporarily assigned by the Employer to do the work of an MM3 and according to Article 8.3 should be paid the hourly wage of a Correctional Officer for all work performed in the temporary MM3 position up to the date the Secondment Agreement was signed. The Employer disagrees that it “assigned” the work to the grievor. Rather, knowing of his interest in the work and his standing in the competition process, the Employer approached the grievor and offered a temporary assignment.

7The Union suggested that Re Ministry of Transportation and OPSEU (Hannah) GSB#2115/99 (Harris) is of assistance to this issue and leads to a finding in favour of the grievor. I agree that the decision is of assistance, but I disagree that it would lead to the grievance being upheld. Indeed, Vice Chair Harris said that one of the four elements necessary to being paid at one’s original rate is that the Employer assigned an employee from one position to another. The Collective Agreement states that there must be “work reasonably available for him in the position from which he was assigned.” It was noted in Re Hannah (supra), when the grievor applied for and received a temporary position, there was no assignment “from’ one position “to” another. It was further said that when the Employer permitted an employee to leave the CO position to take the temporary position he was “temporarily assigned ‘to’ the Drive Examiner position, but he was not assigned ‘from’ the Correctional Officer position. He was permitted to take his leave.

8In this case, the Employer did not require the grievor to take the assignment. For whatever reason, he was offered a temporary assignment and he agreed. He knew the terms and conditions because he had very recently applied for a permanent position. It is also worthy of note that shortly after the onset of the assignment he specifically agreed that the rate of pay is that of an MM3.

9Like the grievor in Re Hannah (supra), the grievor was not assigned the work. He was offered and took a temporary assignment.

10Accordingly, the grievance is denied.